How to get sued: Give poor employment references
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Employers should proceed with caution when providing a reference for a former employee or else they may be liable to pay compensation.
There is a duty of care on the part of the employer to ensure that all the information it provides in a reference is accurate.
Even though a reference does not have to be comprehensive, employers must ensure that the information it contains is not misleading.
How are former employees protected?
There must be a consistency of approach in terms of whether or not an employer will provide a reference. Providing a reference for some and not others can be viewed as discriminatory treatment under the Equality Act 2010.
The Equality Act provides protection to former employees from post-employment discrimination and harassment.
Although there is currently no express protection in the Act against post-employment victimisation, a recent Court of Appeal outcome (following the cases of Rowstock v Jessemey and  Onu v Akwiwu) has clarified that the Act can now be interpreted to provide such protection.
What is meant by âVictimisationâ?
Victimisation is defined as:
âTreating someone badly because they have done a âprotected actâ, or because you believe that a person has done or is going to do a protected actâ.
A âprotected actâ is:
- Making a claim or complaint of discrimination (under the Equality Act).
- Helping someone else to make a claim by giving evidence or information.
- Making an allegation that you or someone else has breached the Equality Act.
- Doing anything else in connection with the Equality Act.
What are the consequences of getting it wrong?
Employers who provide a poor reference, because a former employee has been involved in a complaint of discrimination for example, will be liable to pay compensation under the Equality Act. It is therefore important that employers avoid referring to any claims an ex-employee has made against them, or any grievances relating to discrimination, in any reference. Â Employers should be aware that this will apply to verbal references as well as written references.
Where a poor reference is provided, or information is not factual, an ex-employee could potentially sue the employer for damages if they are unsuccessful in obtaining a job and have suffered financial loss. They could also make a claim for defamation or discrimination.
A new employer can also claim damages against a former employer if it transpires that an untrue reference has been provided. For example, where a glowing reference is given for an employee who performed badly – who subsequently performs badly in their new role.
Offering particularly favourable references in some cases but not others is also a potential problem, as it may give rise to allegations of discriminatory treatment.
Practical advice for employers
In order to help reduce these risks, employers should:
- Ensure they have a formal policy in place in respect of providing references.
- Make sure their policy is applied consistently across the business by all managers.
- Respond only to written reference requests – verbal references can never be strictly âoff the recordâ.
- Provide âstandardâ references only. These are factually based and provide only basic information such as dates of employment, job title, salary on leaving etc.
References
- The Equality and Human Rights Commission
- Xpert HR â How to deal with reference requests
- Personnel Today â âPoor references for claimants risk discriminationâ (Article 4 March 2014)